Imagine for a second that it's the year 1917.
The United States has just entered the horrific,
mechanized fray of World War I. And you, being
a creative type with an eye for historical drama,
decide to make a movie. You aren't making a documentary
about the current conflict in Europe, though.
You're making a sweeping, patriotic epic about
the American Revolution. Or, you know, let's
say you're a political activist instead. Sure.
You decide to stand on a soap box in a public
square and hand out a printed pamphlet that criticizes
the military draft. Which sounds totally normal
today. Exactly. I mean, in almost any other era
of American history, you're just exercising the
basic constitutional rights the country was founded
upon. But in 1917, you hear a knock at the door.
You're arrested, dragged into federal court,
and you find yourself staring down the barrel
of decades in a federal penitentiary. The really
jarring part of that scenario is just how quickly
the foundation of American civil liberties shifted.
A filmmaker could genuinely face 20 years in
prison for making a movie about George Washington
simply because the British happened to be American
allies in 1917. It's wild. The logic applied
in the courtroom was basically that making the
British look bad in 1776 might undermine the
public's commitment to fighting alongside them
in the trenches of France. The legal gymnastics
required to put someone in prison for a historical
film are just staggering. And that is exactly
what we are getting into today. Welcome to the
Deep Dive. Glad to be here. The mission of this
Deep Dive is to explore how a century -old law
originally passed to catch traditional spies
and stop military insubordination during World
War I, somehow morphed over the decades. It really
did transform. Yeah, into the government's primary
tool for prosecuting modern whistleblowers, digital
journalists, and even former presidents. We've
got a comprehensive historical and legal breakdown
today, tracing its evolution from its WWI and
right up to the present day. It's a fascinating
timeline. Right. And why should you care? Because
this single piece of legislation dictates the
extremely fragile boundary between national security
and your right to know what your government is
actually doing. Okay, let's unpack this. Take
us back to the environment of 1917. What were
the specific conditions that allowed a law like
this to take root? Well, the atmosphere in Washington
and honestly across the entire country. was defined
by profound, almost feverish paranoia. The Espionage
Act was passed on June 15th, 1917. That was just
after the U .S. formally entered the war. President
Woodrow Wilson pushed heavily for it. And he
had actually been lobbying Congress for this
kind of domestic security apparatus as far back
as December 1915, long before the U .S. severed
diplomatic relations with Berlin. So the administration
was already looking for a legal hammer before
the country even entered the war. Exactly. Wilson
was deeply concerned about divided loyalties
among recent immigrants, and he was worried about
the growing labor and socialist movements that
vehemently opposed American intervention. Now,
I know there was an older law, the Defense Secrets
Act of 1911. How did this new 1917 bill differ
from what they already had? The 1911 Act was
pretty narrow. It primarily dealt with the physical
reality of spying. You know, obtaining or delivering
national defense information like blueprints
of a fortress to people who weren't entitled
to have it. Traditional cloak and dagger stuff.
Right. But the 1917 Espionage Act was a completely
different animal. It added much stiffer penalties,
including the death penalty or up to 30 years
in prison. But the core of the act, criminalized
conveying information to interfere with the armed
forces, promoting enemy success, causing mutiny,
or obstructing military recruitment. And while
stopping mutiny seems pretty straightforward
during a massive mobilization, the administration's
ambitions went way further. Wilson wasn't just
looking for saboteurs, right? He wanted to control
the press. Oh, absolutely. The battle over press
censorship is one of the most revealing parts
of this whole history. While Congress was debating
the bill, Wilson desperately wanted a provision
for prior restraint. Basically press censorship.
Yes. Prior restraint means the government can
review and stop a newspaper from publishing a
specific story before it's even printed. Wilson
personally lobbied for this, arguing it was absolutely
necessary to the public safety. A sitting president
demanding the legal right to pre -screen the
news? That just seems so antithetical to the
First Amendment. How did Congress react? The
pushback was intense. Critics argued it would
give dictatorial power to the presidency. After
weeks of highly contentious debate, Congress
barely stripped the direct censorship provision
out of the final bill. They removed it by a single
vote in the Senate. The final tally was 39 to
38. Wow. A single vote in 1917 is all that separated
the American press from legalized executive censorship.
If one senator flips, the whole trajectory of
American journalism changes. But even without
prior restraint, Congress still gave the Wilson
administration a massive loophole, didn't they?
They did. They gave it to the postmaster general,
a man named Albert S. Burleson. Since the administration
couldn't directly tell newspapers what not to
print, Congress gave Brilson the authority to
impound or refuse to mail anything he deemed
a violation of the act. Which, in 1917, is everything.
There's no internet, no TV, no commercial radio.
If you want to distribute anything, you need
the mail. Exactly. It was a backdoor censorship
apparatus. Brilson was a staunch partisan loyalist,
and he set up a nationwide network of postmasters
to watch the mail. Do we have specific examples
of what they banned? Oh, plenty. They targeted
populist and socialist publications. For instance,
they banned the Jeffersonian, which is a populist
paper published by Tom Watson. He was a vocal
critic of the draft. When he sued, a federal
judge sided with the postmaster general, calling
the publication poison. I read that the censors
even flagged a headline in the paper that read,
civil liberty dead as grounds for suppression.
Which is incredibly ironic. Right. They suppressed
the paper for saying civil liberties were dead,
thereby proving civil liberties were dead. It's
a perfect closed loop. And they went after the
masses too, right? Yes. The masses was a Socialist
Monthly in New York. The government didn't even
point to a specific military secret they leaked.
They revoked its manning privileges based on
its general tenor. Just the vibe of the magazine.
Pretty much. Judd's line at hand initially ruled
in favor of the magazine, saying you can't suppress
speech just because it might indirectly discourage
someone from enlisting. But the government appealed,
stayed the injunction, and then starved the publication
out of existence by keeping it out of the mail
while the legal battles dragged on. Burleson
didn't even need a conviction. He just needed
administrative power. Now, before we move on
to 1918, there's a really strange quirk of history
buried in the original 1917 text regarding naval
vessels. What was that about? Yeah, this is fascinating.
The act originally forbade transferring naval
vessels to nations in a conflict where the U
.S. is neutral. In 1917, that makes sense. They
didn't want private shipbuilders dragging the
U .S. into war. Makes total sense. But fast forward
to the early years of World War II. FDR is in
the Oval Office. Europe is falling to the Nazis
and Great Britain desperately needs naval destroyers.
The U .S. is legally neutral. Oh, I see where
this is going. FDR wants to execute a destroyer's
four bases agreement to aid Great Britain. But
he suddenly finds himself completely stonewalled
by this obscure clause in the Espionage Act of
1917. A law designed by the Wilson administration
ends up binding FDR's hands. decades later. That's
incredible. But if 1917 laid the groundwork,
1918 is when things really escalated, right?
The Red Scare era. Oh, it escalated massively.
Congress decided the original act didn't go far
enough, so they passed the Sedition Act of 1918.
The 1917 law was technically focused on actions
like interfering with military operations. The
1918 Sedition Act explicitly criminalized speech.
What kind of speech? It prohibited any disloyal,
profane, scurrilous, or abusive language about
the U .S. government, the flag, or the military
uniform. Scurrilous. Who decides what's scurrilous?
That's entirely subjective. That was the point.
It gave prosecutors a huge net. And the convictions
from this era are just absurd. Take Eugene V.
Debs, for example. The Socialist Party candidate
for president? Yes. He was sentenced to 10 years
in prison for a speech in Canton, Ohio that supposedly
obstructed recruiting. He wasn't telling men
to burn draft cards. He was just giving a broad
critique of the war. And he famously ran for
president from his prison cell in 1920, right?
He did. He got nearly a million votes from the
Atlanta federal penitentiary. It's just wild
to think about. And the enforcement wasn't even
consistent. What happened with Kate Richards
O 'Hare? She was another prominent anti -war
socialist. She traveled the country giving the
exact same stump speech in multiple states. But
she was only convicted and sentenced to five
years in North Dakota. Why just North Dakota?
Because enforcement was entirely up to local
U .S. attorneys. If a prosecutor in one district
was zealous or offended by her rhetoric, they'd
charge her. If another didn't care, she went
free. It was geographical roulette. Which brings
us back to our filmmaker from the intro, Robert
Goldstein. Right. Goldstein produced The Spirit
of 76, a movie about the American Revolution.
He was prosecuted and sentenced to 10 years under
the Espionage Act. Because the movie showed British
cruelty. Exactly. The government argued that
depicting British cruelty, even during the revolution,
might undermine support for America's current
WWI ally. jailed for historical accuracy because
of current foreign policy. It wasn't just politics
and entertainment either. It hit religious groups.
Joseph Rutherford, the president of the Watchtower
Society, which we know today as Jehovah's Witnesses,
was sentenced to 20 years. 20 years for what?
The society published a book claiming that patriotism
was a narrowly minded hatred. The government
argued that defining patriotism that way was
an attempt to cause insubordination in the military.
So we have a presidential candidate, a traveling
socialist, a filmmaker, and a religious leader
all thrown in prison. Where was the Supreme Court
in all this? What about the First Amendment?
Well, this brings us to a huge landmark case
in 1919. Schenk v. United States. Charles Schenk
mailed anti -draft pamphlets to drafted men,
arguing the draft was involuntary servitude under
the 13th Amendment. He was convicted, and he
appealed to the Supreme Court. And the court
upheld it. They did, unanimously. Justice Oliver
Wendell Holmes wrote the opinion, and he created
the clear and present danger test. That's where
the famous theater analogy comes from, right?
Yes. Holmes famously originated the concept that
the First Amendment doesn't protect falsely shouting
fire in a crowded theater and causing a panic.
He argued that during wartime, Schenck's pamphlets
were like shouting fire. People still use that
analogy today to justify banning speech, but
what's fascinating here is that Justice Holmes
actually changed his mind almost immediately
after that, didn't he? It is fascinating. After
meeting with free speech advocates, including
Harvard law professor Zachariah Chafee, Holmes
began doubting his own decision. Later that same
year, in Abrams v. United States, the court upheld
the convictions of Russian immigrants who distributed
leaflets denouncing U .S. intervention in the
Russian Revolution. But Holmes didn't vote with
the majority this time. No, he wrote a blistering
dissent. He argued that the surreptitious publishing
of a silly leaflet by an unknown man doesn't
present an immediate danger. He completely pivoted
away from his own shouting fire analogy to defend
free expression. That's a massive shift. So how
did this era end? The Red Scare eventually faded
and the Sedition Act was repealed in 1921. The
Espionage Act kind of fell into relative disuse
after that. Until World War II and the Cold War.
Right. Because they didn't repeal the CORE 1917
Act. They just left it on the books. Exactly.
But surprisingly, prosecutions actually dropped
during WWII. Why is that? You'd think for the
global war against the Axis powers, they'd use
it constantly. Mostly because there was far less
organized public opposition after Pearl Harbor
compared to WWI. But WWII does give us one of
the most incredible press leak stories. The Midway
leak. Yes. The Chicago Tribune story. Walk us
through that. So just after the U .S. won the
Battle of Midway in 1942, Stanley Johnson of
the Chicago Tribune essentially leaked that the
U .S. had broken Japanese codes. He published
a front page story with such accurate details
about the Japanese fleet that it was obvious
the codes were broken. And the Japanese saw it.
They did, and they changed their codes as a result,
which was a massive blow to U .S. intelligence.
The government was furious and convened a grand
jury to indict the publishers. They didn't go
through with it. They dropped the case. Because
prosecuting them would require the U .S. Navy
to stand up in open court and definitively verify
the highly classified information to a jury.
He would compound the damage. Attorney General
Francis Biddle later said the whole thing made
him feel like a fool. So they hit a wall prosecuting
the press. But as the Cold War starts, the focus
shifts away from pamphlets and newspapers and
moves toward actual traditional spies, right?
Right. The nuclear age changes everything. The
focus shifts to Soviet espionage. The most famous
example is the execution of Julius and Ethel
Rosenberg in 1953 for giving nuclear secrets
to the Soviets. But Congress was also tweaking
the law behind the scenes during this time. Yes.
And this is a crucial legal shift. In 1950, Congress
overrode President Truman's veto to pass the
McCarran Internal Security Act. It added Section
793E to the espionage act. What did that section
do? It removed the intent requirement. Before,
prosecutors had to prove you intended to harm
the U .S. or aid an enemy. The new section meant
that the mere retention of classified information
became a crime. Mere retention. Meaning, regardless
of whether you meant to do harm, just having
the documents and not giving them back was a
felony. Exactly. It's a terrifying implication
that set a massive trap for future government
employees. Which brings us to the 1970s and 80s.
The era of the Pentagon Papers and the year of
the spy. Let's talk about the Pentagon Papers
first. Daniel Ellsberg and Anthony Russo were
charged for publishing a massive classified history
of the Vietnam War. They leaked it to the press.
The Nixon administration tried to stop the New
York Times from printing it, which is prior restraint
again. Right. But the Supreme Court ruled against
prior restraint of the press. However, they explicitly
stated the government could still potentially
prosecute the publishers under the Espionage
Act after the fact. The Supreme Court basically
said, you can print it but we won't protect you
from going to jail afterward. Ellsberg himself
was charged. He was, but he was freed due to
a mistrial because of gross prosecutorial misconduct
by the government, including the Nixon administration
burglarizing his psychiatrist's office. Wow.
But the government really wanted to establish
a precedent for punishing leaks to the press.
And they finally got it in 1984 with Samuel Loring
Morrison. I find this case fascinating. Morrison
is the crucial precedent. He wasn't a Soviet
spy. He was a government analyst who sent classified
satellite photos of a Soviet nuclear carrier
to Janes, a British defense publisher. And what
was his defense? He argued the American public
needed to know what the Soviets were doing so
they would support increases in defense budgets.
A patriotic defense. How did the prosecution
counter that? They pointed out he was being paid
by Janes, so they argued he wanted money and
was just disgruntled. But legally, his motive
didn't matter. What's crucial here is that Morrison
became the very first American government official
convicted for giving classified information to
the press. The very first, after nearly 70 years
of this law existing. Right. It became a permanent
test case for the government. They proved they
could use it as a weapon to threaten the media.
CIA Director William Casey explicitly used that
precedent in 1986 to threaten newspapers if they
published intercepted communications. So the
Morrison case arms the government for what's
coming next. We're moving into the 21st century
pivot. And just a quick note for the listener
as we get into these modern cases. We are not
taking a political side or endorsing either the
leakers or the administration's actions here.
We are merely reporting the facts from the source
material regarding these highly charged political
events. Right. Maintaining strict neutrality
on the politics here. So tell us about this massive
shift in the 2000s and 2010s. the Obama and Trump
administrations. aggressively use the act, not
against traditional spies, but against leakers
and whistleblowers communicating with the press.
It started building up in the late 90s with Wen
Ho Lee, the Los Alamos scientist. Yes, he made
backup copies of nuclear codes. The government
spun this massive espionage narrative, but it
totally collapsed. He pled guilty to one count
of mishandling info, and the judge actually apologized
to him in court for believing the government's
initial overblown claims. And then in 2010, you
have Thomas Andrews Drake. Drake was indicted
for willful retention. He was trying to blow
the whistle on the NSA's Trailblazer project,
an expensive domestic surveillance program to
a Baltimore Sun reporter. And then the scale
of the leaks just explodes with Chelsea Manning.
Manning was convicted on six counts of violating
the act for the massive WikiLeaks disclosure
of diplomatic cables and military logs. She was
sentenced to 35 years in a military prison. 35
years, though President Obama later commuted
it to seven years. Right. And then in 2013, Edward
Snowden was charged under the act after exposing
the NSA's PRISM mass surveillance program. And
later, reality winner was sentenced to over five
years. Which was the longest sentence ever at
the time for media leaks, right? For transmitting
a document about Russian election interference.
Exactly. And this roll call of leakers highlights
the core tension of this modern era. What is
that tension? What are the two sides arguing?
Well, President Obama argued that these leaks
put military personnel at direct risk, compromise
ongoing missions, and reveal intelligence methods.
Basically, the system relies on absolute control
of classified information to protect the country.
But the defense attorneys see it completely differently.
Completely. The defense argues their clients
are whistleblowers, making crucial public interest
disclosures. They say exposing illegal government
actions or overreach to the press is protected
by the First Amendment. But the Espionage Act
doesn't recognize a difference between a spy
selling secrets for cash and a whistleblower
going to the New York Times. No, it doesn't.
The physical act of transmission is the crime.
Which brings us to the modern era where things
get even more complex. And again, to the listener,
we are maintaining strict political neutrality
regarding the figures we're about to discuss.
We are presenting the charges purely as factual
applications of the Espionage Act based on our
sources. Understood. Let's look at Julian Assange.
Charged in 2019 under the Act. Yes. for seeking
classified info, specifically the 2010 Manning
leaks, which included the collateral murder video
showing a U .S. helicopter attack. Assange is
an Australian citizen. He spent five years in
a UK maximum security prison fighting extradition
before pleading guilty to one count in 2024 to
secure his release. Why is this case viewed as
such a massive precedent? Because it sets a terrifying
global precedent. The U .S. used a domestic espionage
statute to reach into foreign territories and
charge a non -U .S. journalist operating as a
publisher. It vastly expands the law's reach.
And then you have bizarre cases that test the
law in completely different ways, like Jack Tixera.
The Tixera case is a modern, surreal twist. He
was an air national guardsman who didn't leak
to newspapers or foreign spies. He leaked highly
classified documents onto a Discord server called
Thug Shaker Central. To impress gamers. Yes.
Many of these kids didn't even understand the
documents. He just wanted social clout online.
But under the Espionage Act... Unauthorized transmission
is unauthorized transmission. The venue doesn't
matter. It's absurd. The full weight of a WWI
spy law crashing down on a kid showing off on
a gaming chat server. But the ultimate stress
test of the act, of course, involved Donald Trump.
Yes, the ultimate stress test. Former President
Trump was indicted on 31 counts of willful retention
of national defense information, which goes right
back to that 1950 McCarran Act amendment we discussed.
This was after the FBI raid on Mar -a -Lago in
2022 regarding nuclear documents and military
plans. Right. The charges were purely about the
willful retention of those documents after his
presidency. But the case was dismissed in 2024
by Judge Eileen Cannon on constitutional grounds
regarding the special counsel's appointment.
And the DOJ dropped its appeal after Trump's
2024 election win. So what does this all mean
for the listener? We've seen this law hit socialists,
filmmakers, naval analysts, NSA whistleblowers,
publishers, gamers, and a former president. What's
the fundamental flaw here? The overwhelming criticism
from legal experts, civil rights attorneys, and
groups like the PEN American Center all point
to the Fair Trial Dilemma. Imagine you are charged
under this act today for blowing the whistle
on something illegal. Okay, I'm at the defense
table. This raises an important question. How
do you defend yourself? How do I? You almost
can't. The act is over 100 years old. It was
written 35 years before the word classification
even existed in government vocabulary. So the
law wasn't even built for the modern classification
system. Exactly. And according to lawyers who
defend these cases, the courtroom rules gag the
defense. You are completely barred from using
the word whistleblower in front of the jury.
Seriously? Yes. You cannot mention the First
Amendment. You cannot bring up the rampant problem
of government overclassification where millions
of harmless documents are stamped secret just
to avoid hassle. So I can't explain why I leaked
it? No. There is strictly no public interest
defense. The jury is never allowed to hear why
you leaked the document or if it saved lives
or exposed a crime. They only decide if you had
the document and if you transmitted it. That
makes a conviction almost a mathematical certainty.
And on top of that, it costs up to three million
dollars to mount a defense. You are financially
ruined just trying to fight it. It's a completely
stacked deck. Well, let's recap this astonishing
journey we've been on today. A 1917 law passed
to stop WWI sabotage and punish movie producers
somehow became the mechanism that executed Soviet
spies, prosecuted Pentagon officials, jailed
modern digital whistleblowers, and ultimately
ensnared a former president. It's incredibly
durable and infinitely malleable. And we rely
on the press to know what our government does
in the dark. But the government relies on the
Espionage Act to keep the lights off. That tension
isn't going away. No, it's not. Which leaves
us with a final provocative thought for you to
mull over. We live in a digital age where every
citizen with a smartphone is a potential publisher
and the government automatically generates millions
of secret documents a day by default. So does
a blunt instrument law meant for trench warfare
actually protect our democracy or does it slowly
suffocate the very transparency a democracy requires
to survive? It's a heavy question. Definitely
something to think about. Thanks for joining
us on this deep dive. We will catch you next
time.